Tubens v. Doe

2020 | Cited 0 times | First Circuit | October 1, 2020

United States Court of Appeals For the First Circuit

No. 20-1305


Plaintiff, Appellant,


JOHN DOE; WILLIAM B. EVANS, in his official capacity as Commissioner of the Boston Police Department; CITY OF BOSTON; KEVIN SULLIVAN, individually and in his official capacity as a police officer; DOMENIC COLUMBO, individually and in his official capacity as a police officer,

Defendants, Appellees.


[Hon. Leo T. Sorokin, U.S. District Judge]


Thompson, Boudin, and Kayatta, Circuit Judges.

Mark W. Miller on brief for appellant. Eugene L. O'Flaherty, Corporation Counsel, City of Boston Law Department, Nieve Anjomi, Senior Assistant Corporation Counsel, City of Boston Law Department, and Edward F. Whitesell, Jr., Assistant Corporation Counsel, City of Boston Law Department on brief for appellees.

October 1, 2020

BOUDIN, Circuit Judge. This case arises out of an

alleged unlawful arrest that took place May 2, 2014. Alexis Tubens

alleges that on that night, he and a friend drove to a Shell

Station in Boston. When they arrived, several police cruisers

converged on their car. Between seven and ten officers got out of

the cruisers, some of them with their guns unholstered and pointed

at Tubens.

The officers removed Tubens from his car, handcuffed

him, and searched both his person and his car. They held him for

a total of about thirty minutes before releasing him, having found

no evidence of criminal activity.

On May 1, 2017, the last day of the three-year statute

of limitations period, Tubens filed suit in Suffolk Superior Court

under 42 U.S.C. § 1983 and the Massachusetts Tort Claims Act,

alleging (among other things) false arrest and imprisonment;

excessive force, harassment, and intimidation; and reckless and/or

intentional infliction of emotional distress. He named the City

of Boston, then-BPD Commissioner William Evans, and several John

Doe officers as defendants.

On July 28, 2017, the City removed the case to federal

court. On July 31, 2017, the last day on which he was permitted

to serve the summons under Massachusetts Rule of Civil Procedure

4, Tubens sought (and eventually received) permission to extend

the time for service by thirty days. On August 14, the City and

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Evans moved to dismiss the claims against them. Tubens failed to

respond to the motion until the district court issued an order to

show cause by September 26. When Tubens did respond, on October

2, the district court gave him until October 18 to respond to the

City and Evans' motion to dismiss. Tubens opposed that motion and

filed a motion for leave to amend his complaint. The district

court dismissed the City and the Commissioner (leaving only the

Doe defendants) but allowed Tubens an opportunity to conduct

discovery to identify the officers present at the incident

described in the complaint. This discovery commenced in November


The City's initial disclosures identified defendants

Sullivan and Columbo as having been "present during the Plaintiff's

alleged incident." Record Appendix ("RA") 206. Tubens deposed

Sullivan in April 2018. At Sullivan's deposition, he testified

that he and Columbo had been on the scene with their weapons drawn.

Tubens did not seek to amend his complaint to identify

Sullivan and Columbo as defendants at that time, despite Local

Rule 15.1(a)'s admonition that "[a]mendments adding parties shall

be sought as soon as an attorney reasonably can be expected to

have become aware of the identity of the proposed new party."

After some delay by Tubens, the district court issued an

order giving Tubens until May 15, 2018 to amend his complaint and

identify the John Doe officers. On May 15, Tubens still had not

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moved to amend his complaint, but he did move to compel Columbo's

appearance at deposition, asserting that his original deposition

had been cancelled at the request of counsel for the City, and

that Tubens' counsel had been unable to confirm his availability

through either the City's counsel or Columbo's private counsel

since then.

All told, Tubens sought and received seven separate

continuances of the deadline to amend his complaint, for reasons

including his counsel's ill health, difficulty in deposing

Columbo, and other delays in conducting and receiving discovery.

Tubens eventually took Columbo's deposition on June 21,

2019 and moved to amend his complaint to add Columbo and Sullivan

as defendants on July 29, the last day of the seventh extended

deadline. The City, still nominally in the action, opposed the

motion. The district court allowed the motion to add Columbo and

Sullivan as defendants but noted that "in light of the amount of

time that has passed and that the two officers were identified

long ago in discovery[, ]Plaintiff is at the outer bounds of the

time period for relating back." RA 246.

On October 8, the district court gave Tubens fourteen

days to serve the amended complaint on Sullivan and Columbo, making

the deadline October 22, 2019. On October 9, Tubens' attorney

spoke with the City's attorney about accepting service on behalf

of the defendants. After that conversation, Tubens' attorney made

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no further attempt to serve either Sullivan or Columbo before the

October 22 deadline.

On October 24, defense counsel called Tubens' attorney

to confer, pursuant to Local Rule 7.1(a)(2), about a motion to

dismiss they would file later that day and reminded Tubens'

attorney of the October 22 deadline. Tubens eventually served

Columbo on October 31, but he never properly served Sullivan.

Tubens moved to extend the time for service on November

3, 2019. Under Federal Rule of Civil Procedure 6(b)(1)(B), a court

may, for good cause, allow an extension "on motion made after the

time has expired if the party failed to act because of excusable

neglect." In his motion, Tubens argued that his failure to serve

the defendants by October 22 was excusable neglect caused by an

"unexpected and unprecedented loss of staff." RA 268. The City,

on behalf of Columbo and Sullivan (who, at this point, were still

not parties to the case), opposed.

The district court dismissed the complaint as to

Sullivan, but, noting that Columbo had been properly served before

the proposed extended deadline, allowed Columbo to respond to

Tubens' motion to extend time. Columbo opposed the motion, arguing

that Tubens' counsel's loss of staff was not sufficient to

constitute excusable neglect.

Tubens responded, citing for the first time Pioneer

Investment Services Co. v. Brunswick Associates Ltd. Partnership,

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in which the Supreme Court articulated four factors relevant to

determining whether "excusable neglect" exists. See 507 U.S. 380 ,

395 (1993). The district court concluded that Tubens' counsel's

increased workload due to his loss of staff did not transform his

failure to meet the October 22 deadline for service into excusable

neglect. In an order that did not cite Pioneer or its four factors,

the district court dismissed Columbo and closed the case. Tubens

timely appealed.

On appeal, Tubens claims that the district court abused

its discretion in concluding that his attorney's failure to serve

Columbo on time was not due to excusable neglect. Tubens also

argues that the district court abused its discretion in dismissing

Tubens' case with prejudice.

Columbo argues that the district court did not abuse its

discretion by denying Tubens additional time to serve his Second

Amended Complaint. Alternatively, he argues that this Court can

affirm the dismissal of Tubens' case on the ground that he should

not have been permitted to amend his complaint to name Columbo and

Sullivan as defendants.

Excusable Neglect. Tubens' main argument is that the

district court misapplied the standard for determining whether his

failure to timely serve the Second Amended Complaint was "excusable

neglect" under Federal Rule of Civil Procedure 6(b)(1)(B). The

district court's ruling on this issue is reviewed for abuse of

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discretion. Dimmitt v. Ockenfels, 407 F.3d 21 , 23 (1st Cir. 2005).

Although this is a deferential standard, the district court's

discretion is not absolute. "Abuse occurs when a material factor

deserving significant weight is ignored, when an improper factor

is relied upon, or when all proper and no improper factors are

assessed, but the court makes a serious mistake in weighing them."

Indep. Oil & Chem. Workers of Quincy, Inc. v. Procter & Gamble

Mfg. Co., 864 F.2d 927 , 929 (1st Cir. 1988).

The Supreme Court in Pioneer observed that the

determination of whether a party's actions constitute excusable

neglect "is at bottom an equitable one, taking account of all

relevant circumstances surrounding the party's omission." 507

U.S. at 395 . Relevant considerations include "the danger of

prejudice to the [opposing party], the length of the delay and its

potential impact on judicial proceedings, the reason for the delay,

including whether it was within the reasonable control of the

movant, and whether the movant acted in good faith." Id.

Although the Court in Pioneer was interpreting the

phrase in the context of Bankruptcy Rule 9006(b), this court and

others have applied the Pioneer factors to "excusable neglect"

arguments arising under various provisions of the Federal Rules,

including Rule 6(b). See, e.g., Pratt v. Philbrook, 109 F.3d 18 ,

19 n.1 (1st Cir. 1997); Dimmitt, 407 F.3d at 24 .

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Tubens first argues that, while the district court

examined the third Pioneer factor ("the reason for the delay"), it

neglected to weigh the other three factors at all. Tubens cites

two out-of-circuit cases for the proposition that the failure to

apply the Pioneer factors to an excusable neglect determination

(both under Federal Rule of Civil Procedure 60(b)) constitutes

abuse of discretion. See Brief for the Plaintiff-Appellant Alexis

Tubens at 14 ["Pl.'s Br."] (citing Lemoge v. United States, 587

F.3d 1188 , 1193 (9th Cir. 2009) and Cheney v. Anchor Glass

Container Corp., 71 F.3d 848 , 850 (11th Cir. 1996)).

This court, in contrast, has not always enumerated each

Pioneer factor and analyzed them separately. See, e.g., United

States v. Union Bank for Sav. & Inv. (Jordan), 487 F.3d 8 , 24 (1st

Cir. 2007) (citing all four factors but analyzing only reason for

delay and prejudice); Aguiar-Carrasquillo v. Agosto-Alicea, 445

F.3d 19 , 28 (1st Cir. 2006); Dimmitt, 407 F.3d at 24 (characterizing Pioneer as "enumerating some factors pertinent to

[the] 'excusable neglect' inquiry" and treating the reason for

delay as "the most critical").

Further, this court has noted that "[w]hile each

potential factor should be weighed, there is ultimately a thumb on

the scale because '[w]ithin the constellation of relevant factors,

the most important is the reason for the particular

oversight.'" Skrabec v. Town of N. Attleboro, 878 F.3d 5 , 9 (1st

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Cir. 2017) (quoting Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d

33 , 39 (1st Cir. 2013)).

In Pratt, this court remanded a case so that the district

court could apply the Pioneer factors to an excusable neglect claim

under Federal Rule of Civil Procedure 60(b). 109 F.3d at 22-23 .

However, in Pratt, "[a]t no point in proceedings before the trial

court was the decision of the Supreme Court in Pioneer cited or

its implications argued." Id. at 22. Therefore, the trial court

"was never afforded the opportunity to evaluate the question in

light of Pioneer" and the record on the issue was undeveloped since

"the areas for development that Pioneer identifies . . . were not

explored." Id. In that context, this court determined that the

district court should be given the opportunity to apply the Pioneer

factors in the first instance, "particularly if there is a

reasonable probability that a different outcome would result."

Id. at 20. This case is different. First, neither party in Pratt

had brought Pioneer to the district court's attention at all.

Here, Tubens cited the Pioneer factors in his reply to the City's

Opposition to his motion to extend. See RA 309 & n.1. And, as

Tubens points out, the standard he cited in his original motion to

extend, though technically inapplicable in the civil context,

employs substantially similar factors. See id.; RA 267 (listing

"(1) the nature of the case (2) the degree of tardiness (3) the

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reasons underlying the tardiness (4) the character of the omission

(5) prejudice to the non-moving party (6) the effect of granting

or denying the motion on the administration of justice, and

(7) whether the belated filing would be more than an empty

exercise.") (citing United States v. Roberts, 978 F.2d 17 , 21-22

(1st Cir. 1992)).

Tubens argued in his moving papers that the delay was

relatively short (within ten days of the court's fourteen-day

deadline), it was not a result of bad faith on Tubens' part, and

it would not prejudice Columbo. Those arguments directly apply

the Pioneer factors. Further, the City and Columbo each cited

several cases in which this court analyzed "excusable neglect"

under Pioneer. The district court relied on those same cases in

its order.

Second, this court has repeatedly noted that "[t]he

four Pioneer factors do not carry equal weight; the excuse given

for the late filing must have the greatest import. While

prejudice, length of delay, and good faith might have more

relevance in a closer case, the reason-for-delay factor will always

be critical to the inquiry.” Hosp. del Maestro v. NLRB, 263 F.3d

173 , 175 (1st Cir. 2001) (quoting Lowry v. McDonnell Douglas Corp.,

211 F.3d 457 , 463 (8th Cir. 2000)). "Even where there is no

prejudice, impact on judicial proceedings, or trace of bad faith,

'[t]he favorable juxtaposition of the[se] factors' does not excuse

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the delay where the proffered reason is insufficient." In re

Sheedy, 875 F.3d 740 , 744 (1st Cir. 2017) (quoting Hosp. del

Maestro, 263 F.3d at 175 ).

This is not a close case. Tubens says the reason for

his delay was that his counsel suffered a "sudden, major, and

unexpected loss of staff" and, in picking up the slack, he lost

track of the October 22 deadline. Pl.'s Br. at 20. The district

court addressed this argument in depth, citing several cases for

the proposition that "busyness and confusion over filing dates by

counsel [is] inadequate to support a finding of excusable neglect."

RA 332 (quoting Deo-Agbasi v. Parthenon Grp., 229 F.R.D. 348 , 352

(D. Mass. 2005)). Further, it correctly noted that "the Court

must 'give due regard to the totality of the relevant circumstances

surrounding the movant's lapse.'" RA 332 (quoting Bennett v. City

of Holyoke, 362 F.3d 1 , 5 (1st Cir. 2004)).

As the district court observed, Tubens' "counsel's

actions [came] after numerous delays and failures to comport with

the Court's procedural rules." Id. at 333. The district court

reasonably determined that Tubens' counsel's "lack of diligence"

at "numerous junctures" in this case, coupled with the unpersuasive

reason for delay in serving Columbo, was sufficient to outweigh

Tubens' arguments for another extension. RA 333.

In addition to his argument that the district court did

not apply all the Pioneer factors, Tubens claims that it misapplied

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the parts of the test that it did explicitly address.

Specifically, Tubens argues that the district court failed to give

adequate weight to the reason for the delay by treating Tubens'

counsel's "sudden, major, and unexpected loss of staff" like

"ordinary busyness." Pl.'s Br. at 20. Pioneer itself disposes of

a like argument. See 507 U.S. at 384 , 398.

Dismissal with Prejudice. When determining whether a

dismissal with prejudice is warranted, this court considers all

aspects of the case including "the severity of the violation, the

legitimacy of the party's excuse, repetition of violations, the

deliberateness vel non of the misconduct, mitigating excuses,

prejudice to the other side and to the operations of the court,

and the adequacy of lesser sanctions." Benitez–Garcia v.

Gonzalez–Vega, 468 F.3d 1 , 5 (1st Cir. 2006) (quoting Robson v.

Hallenbeck, 81 F.3d 1 , 2 (1st Cir. 1996)).

Because "case management is a fact-specific matter

within the ken of the district court, reviewing courts have

reversed only for a clear abuse of discretion." Robson, 81 F.3d

at 2 –3. "[W]e must fairly balance the court's venerable authority

over case management with the larger concerns of justice, including

the strong presumption in favor of deciding cases on the

merits." Malot v. Dorado Beach Cottages Assocs., 478 F.3d 40 , 43

(1st Cir. 2007).

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Dismissal with prejudice is justified when a party

repeatedly fails to comply with orders of the court, including

court-ordered deadlines. See Serra–Lugo v. Consortium–Las

Marias, 271 F.3d 5 , 6 (1st Cir. 2001) (per curiam). "Where despite

a warning, a party's neglect is extended and prejudicial to the

court's ability to manage its docket, a court may dismiss a case

with prejudice without first exhausting milder

sanctions." Drysdale, Inc. v. Wolfram, 2009 WL 189959 , at *2 (D.

Mass. Jan. 27, 2009) (citing Figueroa Ruiz v. Alegria, 896 F.2d

645 , 649 (1st Cir. 1990)).

Here, Tubens' failure to comply with the district

court's October 8th order comes after a long history of delay.

For the reasons enumerated in the district court's order denying

Tubens' motion to extend time, the district court acted well within

its discretion to dismiss Tubens' case with prejudice.


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